Ask Stacy: More Advice from the Love Lawyer

No, I do not call myself the “love lawyer!” A while back, friends ascribed to me that term because of my interest in love stories and my not-so-secret desire to keep families together when appropriate and if possible. Those who follow me here know I love a good Hallmark movie. Call me a hopeless romantic, but I am a sucker for a good love story. Indeed, one of my favorite pieces of jewelry is a heart! All these facts might seem counterintuitive for a family law attorney who is in the business of helping clients end their relationships. Still, my abiding faith in love and renewal keeps me eternally optimistic. And though my clients are often in the throes of a relationship on its last legs, I remain steadfast in believing that love is worth it. I always try to find hope and promise for a better tomorrow in even the darkest moments for my clients. With every ending comes a new beginning. 

Now, let’s tackle some of your questions:

ASK STACY: How do divorce attorneys typically charge for handling a case? Is it by the hour or a flat fee?  

MY THOUGHTS: In California, a flat fee is not the norm. I cannot tell you what it is like in other parts of the country. I would not be surprised if attorneys in smaller towns have a flat fee, especially if the divorce is not contested and there is not much to divide. In big cities, lawyers typically charge in either six-minute or 15-minute increments. Our ethics rules require attorneys to carefully track their time on each case, entering it into a billing system each day. Careful tracking ensures the billing is accurate and clients can see clearly how and where the time was spent on their behalf. 

ASK STACY: Can I appeal a divorce decree if I’m unsatisfied with the outcome?

MY THOUGHTS: Once a divorce is settled, you cannot appeal because you have already agreed to the terms as part of the settlement. Having second thoughts is not grounds to undo what has been done. If a judge makes a decision and you disagree with it, technically, you could appeal. However, trial court judges have a lot of latitude in their choices, so you would have to find fault in how the law was applied. Appellate courts are not meant to provide an opportunity to retry the case. They are adjudicators of the law. They determine if the issues go beyond the trial court's discretion or if the trial court made a legal mistake. Because trial judges have a lot of discretion, an appellate court will unlikely reverse the decision. I would speak to an appellate lawyer to help you evaluate whether the time and money spent appealing is worth the risk.

ASK STACY: I love your podcast, Stacy Phillips & Friends. I particularly like how you curated the co-hosts and special guest interviews. How did you pair up such fascinating conversations? Please give us a little behind-the-scenes insight. 

MY THOUGHTS: First off, thank you for watching. We had a lot of fun making them.To answer your question, the co-hosts are some of my closest friends. The guests have been chosen from a close-knit group of people I work with and from research conducted by my producers to find calm and interesting guests to partner with. I'm pleased to say that most of those guests are now my friends too. They are all very talented; having them on the podcast has been a pleasure. When planning each episode, we bring together people with connections or perspectives on a particular topic. That allows us to build on that discussion interestingly. 

ASK STACY: I’ve heard you are a big fan of Hallmark movies and, occasionally, a good reality dating show.  What are you watching now that has captured your attention, and why?

MY THOUGHTS: It is true, I love Hallmark movies, especially my friend Melora Hardin’s “Love, Classified.” And I love a good Hallmark series since 2014, when “When Calls the Heart” first aired. I simply devour these programs – they are a great escape and an opportunity for a good cry, which can be cathartic. I also just finished watching The Gilded Age, which I adored as much as Downton Abbey. I also loved Bridgerton, which means I must love a period-piece romance! I also watched the Netflix series Nobody Wants This about the shiksa (a non-Jewish woman) and the Rabbi. It took me a little while to get into it, but the episode in the porn shop had me laughing hysterically out loud. I am also looking forward to The Morning Showcoming back. Any escapist entertainment is right up my alley. I am not a big fan of science fiction or fantasy. I like murder-mysteries and action-adventure programs, however, I still want to go to bed smiling and not anxious at night. (It’s a fine line!) I also have a weak spot for law shows and doctor shows. There is a new doctor show with Noah Wyle called The Pitt – Noah is terrific, but then again, I may be biased because he is a long-time friend.

ASK STACY: My spouse and I receive Social Security, but his payments are more significant than mine. Will those payments be factored into the support during our divorce?  

MY THOUGHTS: Your spouse’s higher social security payments could be considered as part of income available for support, just like disability payments, pension payments, and a regular salary. The court will look at the totality of your spouse’s income to help determine reasonable support payments. 

ASK STACY: I have discovered that my husband has a second family he has kept secret for the past five years of our marriage. Am I entitled to a share of the assets he has provided to this other family? 

MY THOUGHTS: In California, what your husband has done by giving this second family community property, as opposed to his separate property, assuming he has any, is a breach of fiduciary duty. If you and your attorney cannot work this out with him and his attorney, then a judge will decide. Believe it or not, this situation is not as unusual as you might suspect. 

ASK STACY: My husband has two children from a previous marriage, who their mother raised. We have two of our children. In our trust, we left the bulk of our estate to our two children, but now that we are divorcing, he wants everything split evenly between all four. Can I fight this? 

MY THOUGHTS: He can do whatever he wants with his share of the assets awarded to him in your divorce. There is not much you can do. You can try to negotiate what he will leave for the kids. Anything is possible in the settlement process. You might have to give up something else to get your spouse to agree to your terms. I am not an estate planning attorney, so I defer to an expert on this topic.

ASK STACY: I am in the midst of a very contentious divorce. I recently discovered that my spouse had hidden a recording device in my house without permission. How will this impact the divorce proceedings? 

MY THOUGHTS: In California, taping can only be done with both parties’ permission. In some cases, permission is assumed, such as when you leave a message on a voicemail or if a sign clearly states you are being recorded. These instances might not be the case in other states where permission is not required. So, if your spouse records you without your consent in California, it will not be admissible in court. It is viewed as an invasion of your privacy. It can also be considered a form of stalking, and that is regarded as domestic violence. So, talk to a lawyer. You may be able to go to court and get a restraining order based on that action, which could affect attorneys’ fees, support, and custody.

ASK STACY: My ex still has access to my Ring camera. He sees me coming and going and knows who I am coming and going within my own home now that we are divorced. Is that legal?

MY THOUGHTS: Unfortunately, since you knew about the Ring device, your permission is assumed, so it is legal. I recommend changing the access phone number and password. If that is not possible because your ex-spouse is still paying for it, remove the Ring device and install a brand new one with a completely new account that your ex will not have access to. Your privacy is important, and so is your peace of mind. 

ASK STACY: My spouse and I are not wealthy, but since we filed for divorce, he has lavishly spent on himself. He goes on expensive golf outings, deep-sea fishing trips, and fancy dinners with his friends. Can he squander our money without any legal recourse?  

MY THOUGHTS: Here is the question. Is your spouse spending from his earnings? Is he spending from a savings account or a stock account in both your names? We often do post-separation accounting for people who are spending money from joint funds. If that is what he is doing from joint funds, you can ask the court to stop him from doing it. If he is spending from his earnings and paying you support, assuming you are entitled to help, he can spend his money however he chooses. For example, he makes $100 and gives you $35 because you are not working. He can spend the remaining $65 however he wants. You have no control. But if he is spending your community money and depleting your joint assets, speak up and let your lawyer know immediately. In California, automatic temporary restraining orders are put in place. So, he is allowed to spend joint monies in the ordinary course of business for necessities and to pay his lawyer. But anything beyond that could be a violation. Again, I recommend talking to your lawyer.

ASK STACY: My spouse and I have separated and are living separately. We are contemplating divorce, but it may not be in our best interest since we are in our golden years. Can we draw a line in the sand regarding our finances? Can we enter into a separation agreement that divides assets without going through a full divorce?

MY THOUGHTS: You can do a formal legal separation where you divide your assets and determine if support is appropriate. You can still file a joint return, et cetera, but your assets are divided. If the status quo is okay and you do not want to get a divorce, you can keep things as they are. However, if you are concerned that your spouse will go through your savings and spend more than you, then go ahead and divide them.

Please note: The content and views expressed here are my own and do not reflect or represent the positions, strategies, views, or opinions of Blank Rome LLP.